Chairman Frank (D-MA)
The Washington Blade’s Chris Johnson reports today that Chairman Barney Frank (D-MA) has not signed on as a co-sponsor of Rep. Jerrold Nadler’s bill to repeal the Defense of Marriage Act. Frank’s reasoning, in large part, precisely tracks the concerns with the bill I discussed back in July.
People are going to be all over Frank for this and our usual suspects will be spreading stories about how Frank has “sold out” the LGBT community.
They’re wrong.
From Johnson’s report:
Frank said in an interview Friday with the Blade that he’s not a co-sponsor of the legislation because he has a “strategic difference” with people supporting the repeal legislation.
“It’s not anything that’s achievable in the near term,” he said. “I think getting [the Employment Non-Discrimination Act], a repeal of ‘Don’t Ask, Don’t Tell,’ and full domestic partner benefits for federal employees will take up all of what we can do and maybe more in this Congress.”
Frank also said that advocacy for the “certainty provision,” as described by Nadler, would create “political problems” in Congress.
“The provision that says you can take your benefits as you travel, I think, will stir up unnecessary opposition with regard to the question of are you trying to export it to other states,” he said. “If we had a chance to pass that, it would be a different story, but I don’t think it’s a good idea to rekindle that debate when there’s no chance of passage in the near term.”
The certainty provision is, as I wrote in July, “not something I’ve ever heard discussed and not a concept that appears to have been explored anywhere else in Google’s mind, and I think it’s a quite problematic concept, at least politically.”
Here’s my concern, as expressed back in July:
[A] state where same-sex marriages are prohibited by statute or the state’s constitution would, with the bill’s passage, be in the position of having residents that it considers to be unmarried living in the state recognized as married by the federal government. Although not as extreme as compelling the state itself to recognize the same-sex marriage, this seems to me to still cause significant opposition from not only marriage equality opponents but also some who are more agnostic on the issue but want to see the issue “left to the states” to come to their own decision.
It also would cause practical difficulties for the states where same-sex marriage is not allowed. In Ohio, for example, there is an amendment prohibiting same-sex marriage in the state. Under the Nadler proposal, if passed, there likely would be at least some same-sex couples who are Ohio residents filing joint federal income taxes. Ohio state taxes ordinarily reference federal filings, but the state obviously would have to make some changes in its procedures to address this new situation.
Although not as problematic for passage as compelling state recognition, Nadler’s proposed “certainty provision” appears likely to create a lot more uncertainty and complications for the bill’s prospects for passage than a simple DOMA repeal bill would cause.
Once it became clear to Frank that Nadler was unwilling to bend on this point, Frank had to do what he thought was best for the legislation.
Anticipating the vitriol Frank’s going to receive for this, I’ll jump out in front of the bus. Frank is just smarter, and more strategic than them. That’s all it is, and everything else is just a smokescreen.
The “certainty provision” is a poison pill that turns a nearly-impossible-to-pass bill into a pipe dream. Frank is right to take the stand he’s taken today.
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Chris Geidner is the award-winning senior political & legal reporter at BuzzFeed and has written for Metro Weekly, The Atlantic Online, The American Prospect, Advocate.com, Salon and other publications, as well as at his blog, Law Dork. He has appeared regularly on television commenting on current affairs, including MSNBC, PBS, HLN & Current. Prior to moving to D.C. in 2009, he served as an attorney on the senior staff at the Ohio Attorney General's Office and had earlier worked for a leading Columbus law firm. An extended biography can be found
Contrary to popular opinion, you CAN support the LGBT community even if you’re not supporting this particular bill.
Technically, is it a poison pill if it is a provision put into a piece of legislation by a bona fide supporter?
But without the “certainty” provision, doesn’t that mean that federal rights evaporate if you leave your own jurisdiction? Which would basically create a forcefield around where a person lives, and makes their marriage disappear if they walk through it.
Without that, what’s the point?
It makes sense to start a bill with what you want, knowing you are going to have to concede some items eventually. Frank should be supporting this bill as written, with the knowledge that at will be negotiated. It makes no sense to introduce a half hearted piece of legislation.
A full or partial repeal of DOMA is more likely to happen faster than a repeal of DADT as they know that the legal cases are moving quickly and are likely to result in wins for LGBT (and embarassement foregislators). They can and will continue to fend off DADT lawsuits under the guise of “national security” for years, if not decades.
Without that, what’s the point?
The point of repealing DOMA is to treat SSM like any other kind of marriage we’ve seen where some states recognized it and some states don’t. In 1965, Virginia didn’t recognize interracial marriages; D.C. did. Today, Texas doesn’t recognize first-cousin marriages; Vermont does. Prior to DOMA, the tradition always was that the states were free to recognize only those marriages that would have been legal if contracted within the state, but the federal government recognized any marriage that a state recognized. (E.g., the federal government has always recognized interracial and first-cousin marriages, even when many individual states don’t, so long as some states do.)
DOMA broke that tradition by saying the federal government specifically wouldn’t recognize SSM even where legal in some states, thus treating SSM differently than all other “variant” kinds of marriage (such as interracial or of first cousins). Getting rid of that discrimination is both the strongest legal argument for repeal (since even conservatives have to admit that DOMA breaks with tradition) and gets rid of the legal messes created by having a marriage recognized at the state level but not the federal level.
It makes sense to start a bill with what you want, knowing you are going to have to concede some items eventually. Frank should be supporting this bill as written, with the knowledge that at will be negotiated. It makes no sense to introduce a half hearted piece of legislation.
Not if the bill you start with scares off so many people that it’s DOA. Forcing the federal government to recognize SSMs from Mass., VT, NH, Maine et al. is perfectly compliant with U.S. legal tradition. In contrast, forcing a state to recognize an out-of-state marriage that can’t legally be performed within that state is a huge break from legal tradition. Until we get the SSM equivalent of Loving — declaring SSM a constitutional right that must be not only recognized but performed in all 50 states — it’s legally dubious to force a state to recognize those out-of-state marriages. Without the constitutional holding, why should SSM be treated differently than other variant marriages have been?
A full or partial repeal of DOMA is more likely to happen faster than a repeal of DADT as they know that the legal cases are moving quickly and are likely to result in wins for LGBT (and embarassement foregislators). They can and will continue to fend off DADT lawsuits under the guise of “national security” for years, if not decades.
Have you not looked at the polling on these issues? There is majority support for allowing states to decide whether or not they will recognize SSM, whereas there is *not* majority support for DADT. In all polls taken in the last couple of years, a majority of Americans have said that gays should be allowed to serve in the military. When you’re looking at federal legislation, what a majority of Americans want makes a difference. We’re going to have gays serving openly in the military before we have every state recognizing SSM.
PG:
I’d barely call 50 co-signers on repeal of DOMA DOA. The President has called it discriminatory on more than one occasion in public. Furthermore, it increasingly appears that at least some parts of DOMA likely will be declared unconstitutional, and it would be best if lawmakers (many of the reluctant supporters are still in office) repealed it before that happens so they don’t look like discriminatory bigots when multiple judges start issuing tersely worded opinions.
The public polling on DADT is completely irrelevant. The powers that be in the military are fighting the repeal of DADT with every ounce of energy that they have. Furthermore, it is un-touchable via lawsuit, so there is no downside for senators.
bluprntguy,
You’re pushing not just for a repeal of DOMA (which requires the *federal* government to ignore SSMs that were legal in the states where they were performed); you want to go further, to having the federal government *force* states to recognize marriages that would not be legal if performed in that state. Where has Obama endorsed that? That’s the part I’m calling DOA. I very clearly stated, repeatedly, that simply having the federal government recognize valid SSMs would fit with legal tradition and shouldn’t be a problem, whereas forcing states to recognize SSMs breaks with tradition and would be difficult. I’m not sure why you’re trying to sow confusion over this. The distinction between federal and state recognition is a significant one that has been discussed on this blog many times.
The idea that Congress spends its time fretting about the outcomes of lawsuits is ludicrous. The Supreme Court has been overturning Congressional legislation over and over for the last couple of decades. The Court’s finding in Lopez that there had to be some link to commerce in order for Congress to exercise its interstate commerce powers didn’t stop Congress from passing a Violence Against Women Act. In particular, Congress does not go around withdrawing prior legislation that has been in effect for years if it looks like the Court might eventually find it unconstitutional. You’re making assumptions about the legislative mind with no evidence to back it up.
Compare the backing for a repeal of DADT (support from Senate Majority Leader Harry Reid of *Utah*) with the backing for forcing states to recognize out-of-state marriages that are otherwise invalid in that state (can’t even get Barney Frank).
Well done, PG. As much as I want to see SSM made valid in every state, your logic and history on marriage as a family law matter left largely to the states is unimpeachable. I love Jerry Nadler and would make him an honorary gay because he is so good on LGBT concerns. But the certainty provision in this otherwise wonderful bill just can’t fly for reasons having nothing to do with supporting or opposing SSM (hence, Barney Frank’s concerns, at least in part).
BTW: Harry Reid is from Nevada, which has plenty of Mormons, too, but also alot of gamblers. But Harry isn’t taking any particular gamble by supporting repeal of DADT. Support for the repeal is now widespread and utterly defensible for national security reasons, well apart from any notions of justice, equality or fairness. So even though he faces a tough re-election battle next year he is supporting repeal. That says something about the political prospects for success of the repeal effort.